Batt v. Special Indemnity Fund

SUMMARY Farnan, Lucille E. BATT and Joe Real original cognizance assuming When Party Interest, Petitioners, multiple but one of

this court choose of an ur tendered for its resolution issues lawmaker, controversy. gent public-law As a SPECIAL INDEMNITY FUND and knowing the Senator has interest interdepartmen official

whether Senate’s Court, Respondents. being tal affairs with the are car Governor No. 78427. legitimately, in ried out accordance with hence has stand Constitution. Senator Supreme Court of Oklahoma. pronouncement court’s to seek this occupied governor’s office stands whether Dec. 1993. by forfeiture due to the or became vacant failure to take an oath in the incumbent’s prescribed by 51

form O.S.1961 provisions

The 1969 Amendment of the XV, Const.,

Art. Okl. was intended to

revamp regime, repealing by the oath substi- requiring Legis- 2 oath and

tution affirmatively to act

lature an effort to mandatory

transform the 2 into a text in-

supplemental oath. No indicia for this

tended transformation have been advanced burden-bearing Petitioner none through

have been found our research. interpretation

Post-1969 administrative 2, coupled analysis, compels with our own public

the conclusion that officials are not

required to take the oath which was last

effectively prescribed by O.S.1961 ASSUMED;

ORIGINAL JURISDICTION

THE COURT PRONOUNCES THE GOV-

ERNOR HAS NOT FORFEITED HIS OF-

FICE BY FAILURE TO TAKE AN OATH

IN THE FORM PRESCRIBED BY THE

PROVISIONS OF 51 O.S.1961

HODGES, C.J., LAVENDER, V.C.J., and

SIMMS, HARGRAVE, ALMA WILSON

KAUGER, JJ., concur.

SUMMERS, J., concurs in result.

WATT, J., disqualified.

from the Fund abates upon Employee where the Special Indemnity O.S.1981, Statute 85 (renumbered O.S.1991, as 85 172(D)) “[ajwards states from the Indemnity death, upon Fund shall abate cause, employee.” of the We hold according that to the law in effect at the time injury, Attorney’s part fee abated as Employee’s award.

FACTS AND PROCEDURAL HISTORY (Attor- Respondent attorney Joe Farnan ney) represented E. (Employee) Lucille Batt injury claim for an Em- ployee place employment. incurred at her injury in February occurred 1986 when Employee years Employee was 63 old. filed a claim in March 1986. December Compensation Court found that Employee previously physically was a im- paired person. prior The court combined all injuries injury with the current and found permanently totally her to be and disabled. The court ordered Petitioner Indem- (Fund) nity pay Employee Fund $163.00 per Employee week for five or until later, age period reached 65 whichever came O.S.1981, 172(B).1 according to 85 weekly payment court ordered that 5th $163.00, weeks, not to exceed 500 would be Attorney of to Em- instead ployee. Employee died December 1989. payments

The Fund Em- discontinued ployee stopped paying Attorney as Attorney asking well. The filed a motion Workers’ Court to order the paying attorney’s Fund to continue fee. Attorney wrongly contended that the Fund Gustar, David Ins. State only pay- him ceased and that City, respondents. Employee ments to the abated at her death. Farnan, attorney’s The court that the award- Purcell, held petitioners. Joe Attorney part parcel

ed to the was award to the and therefore abated LAVENDER, Vice Chief Justice. Upon Attorney’s request, her death. question presented panel is whether of three judges Attorney’s of an award made claim. reviewed The three 172(B) Supp.1992. 1. Now 85 Attorney’s “attorney

judge panel claim for his that fees are to be denied Employ- date of the claimant’s award.”4 past ee’s death. Chamberlain we held the commu- attorney Appeals judg- lump tation of fees to a sum is

The Court of sustained mandatory if of Court. there is an award made for however, However, permanent disability.5 total rehearing, the court vacated the since On judge govern- Compensation Court three neither case addresses the statutes Workers’ Indemnity panel ing matter with instruc- and since and remanded the Attorney plainly in citing a 1992 amendment to 85 O.S. the instant case has stat- tions seeking lump payment, § 30. The amendment added the sen- ed he is not sum any attorney right dispositive. such the cases are not “[t]he tence shall be vested at the time the award there- Appeals Taylor of on also relied for becomes final.” The court found this v. Indem. Fund6 where we held that although dispositive, it was not amendment O.S.1981, regarding attorneys’ 85 30 in effect at the time the award final. become compensation in workers’ awards controls O.S.1981, §

over 172 85 as the method of ANALYSIS payment Taylor In fees. we held “attorney fees after an award from the Appeals The Court of held that the Attor- paid lump Fund must be in a sum.” Here ney’s independent was of the Em- award again, Taylor dispositive, is not because At- ployee’s holding award and its on based torney requesting lump is not sum award. Dep’t Transp. v. Barnes2 and Attorney appeal In fact concedes he did not American Airlines.3 Both Chamberlain method decided involving these cases cover issues conversion Court, i.e., $163.00 attorneys’ lump fees to sums from awards fifth week for until Em- five against made other than the Fund. Howev- ployee age peri- reached the of whichever er, recognizes in Barnes the court that attor- od came later. neys’ fees are deducted from the award, evidencing only there one award The Court of next relied on a 1992 Likewise, O.S.1991, § in made. Chamberlain we noted amendment to 85 30 which (Okla.App.1991). language P.2d 923 in section 30 is now harmonized O.S.1981, (also language with the in 85 (Okla.1987). 3. 740 P.2d 717 O.S.1991, Supp.1992) § 172 and which states: permanent disability total cases the same Id., at 720. paid periodic payments shall be ... and lump-sum pay- shall not be commuted to a holding partially 5. This was based added). (Emphasis ment. found in 85 30 which stated: legal permanent Claims for services for total 6. 804 P.2d 431 disability may awards or death awards be in a sum ... until the fee is satisfied. dissenting opinion 7. Id. at 433. But see the Legislature changed in 1992 section 30 to: Taylor: legal permanent Claims for total general provisions Unlike of workers' disability paid periodically awards be ... shall (85 30), (Emphasis law O.S.1981 which until the fee is satisfied. added.) expressly lump-sum payments sanctions to sat- isfy ordinary an fee award in claims legal services for death awards employee, specific, self-contain- be in a sum ... until the (85 172), governs statute O.S.1981 which attorney fee is satisfied. liability the Fund's suit the exclusion of 294, 8, (1992, O.S.Supp.1992, § C. others, explicitly prohibits all commutation of 1, 1992). Sept. eff. any part disability adjudi- of a Legislature clarified its intent as to (Emphasis original). cation. Id. at 433-34 awards for awards. states, any making award the Fund is 85 “[t]he at the time the award there- 172.11 shall vested Section states: for becomes final.”8 The court reasoned Awards from the Fund explains previ- that the amendment what was death, shall abate ously and that it intended clarifies cause, employee. However, right as to fees. the Fund con- language in tends that the new section 30 is 172 is silent on Section Legislature’s response to Chamberlain Taylor speaks we noted that section 30 (see herein) notes 5 and 7 where distinguish fees and does not attorneys we made sum awards to among against employers, awards insurance mandatory. cases carriers, However, and the Fund.12 section language The Fund maintains that the new attorneys’ 30 is also silent as to the status of taken in context is intended to correct those employee. awards at the death of the Sec- holdings. 41, though, tion provisions contains two abate referring employee’s to an death. Section 41(A) in regard states to awards made for paid periodically awards shall be permanent partial disability: ... until the fee is satisfied. The any fee shall be In case of the death of a claimant due to

vested at the time the award therefor be- personal causes other than his accidental Supp., comes final. 85 O.S.1992 30. injury occupational any or disease at time before satisfaction or of the total implications Whatever of the 1992 made, abate, award is the award shall not amendment, because the was not in persons but shall be revived in favor Employee’s injury, at the time it effect by determined the Court to be entitled govern the case at hand. The law 41(A). thereto. 85 employee’s injury effect at the time of an compensation controls in workers’ matters.9 provision govern perma- is couched to compensation by “A claim is controlled partial disability nent awards. injury

laws in existence at the time of 41(C) Section also has an abate clause. It by not laws enacted thereafter. ... No sub states: sequent operate retrospec amendment can tively any way rights disability may affect An award for be made after obligations injured employee, which are fixed.”10 note that We when 3.6(D) O.S.1981, of the Workers’ Com death results from causes other than the “[bjenefits pensation provides, statutes injury. employee for If an dies as a result of any injury injury shall compensable occupational be determined the law or an disease, injury....” effect at portions the time of of an unaccrued award or order shall abate. 85 injury Since the in the 41(C). instant case occurred in the workers’ provision governs specific statutes in force at that time This also situa- tion, governs dispute. applicable i.e., employee statute when the dies as a result Archer, Supp., § 8.85 O.S.1992 30. We note that this 9. Indem. Fund v. 847 P.2d 791 Services, (Okla.1993); portion Knott v. Halliburton amended of section 30 was enacted six (Okla.1988). P.2d 812 Employee's injury, years after the four after Court made the Knott, 752 P.2d at 813-14. Employee, award to the and did not become following effective until the month the Court of Cole, Indem. Fund v. 834 P.2d rehearing. decision on While the (Okla.1992). amended doubt no will be relevant to cases, Taylor Special future it Indem. 804 P.2d does control the case at hand. injury. provi- that the It follows abate CONCLUSION sion contained within section is intact herein, For the reasons stated the Court of only applicable and of itself and is to awards Appeals opinion hereby VACATED. The made from the Fund. Section states judgment of the Workers’ from the Fund shall abate awards judge panel three is REINSTATED. employee’s death. The statement con- limitations, it tains no nor does differentiate HODGES, C.J., SIMMS, among permanent partial awards disabili- ALA, JJ., and OP concur. HARGRAVE disability, ty, permanent compensable SUMMERS, JJ., KAUGER and concur in death, revival, injury attorneys’ related result. simply lays It out that awards from employee. the Fund abate at the death of the WILSON, J., part; ALMA concurs in Legislature If the had intended limitations to part. dissents pronouncement or if it had intended for WATT, J., be continued dissents. award, after the abatement of an WATT, Justice, dissenting. have so would stated. opinion, For the reasons set out in this I In Employee’s the instant case the award previously dissent. We have not addressed was made the Fund. There was one attorney the issue of whether an fee award award, made. award Within the the Work- Fund, against Special Indemnity the ordered Compensation ers’ Court included installments, paid to be survives the death weekly pay- fees. The received a examining question of In the claimant. this I ment award for four consecutive weeks will discuss several of our earlier decisions and then on fifth week the applicable and the statutes. Attorney.

was diverted to the The 1987, In decided we Chamberlain v. Amer 172(C) speaks in 85 of “awards”. Airlines, ican 740 P.2d 717 We 172(C) The Fund contends section § required payment held that 85 O.S.1981 30 stipulate only portion that a of the deceased attorney in a sum of fees awarded employee’s says award abates. It “awards cases.1 The Fund argues abate”. The Fund that there no are Chamberlain, party was not a to and after it 172(C) exceptions operation of Section consistently position was decided took the and that no distinction is drawn between an before the Workers’ employee’s por- fee and an Court, and that the Chamberlain deci against tion of an apply award made the Fund. sion did not to the Fund. The Fund argued § apply that 30 did not it to because Fund maintains that section liability attorney the Fund’s fees was upon abates awards in toto the governed by 172.D, Id., § 85 O.S.1981 note 1. agree. According death. We to the law in Employee’s injury, effect at the time of the Fund, right attorney of the the to his fee derived (Okla.1990), ap P.2d we considered the right of the claimant to an receive plicability §§ 30 and 172 to the Fund’s right award. When the claimant’s abated so obligation pay attorney fees. The Fund unpaid por- also did the then unaccrued and appealed permanent disability a award be tions of the fee likewise cause the abate. Court had applicable portion legal § 1. The of 85 O.S.1981 Claims for disability services for may provided: awards ... in a sum.... Thus, § attorney applies equally employers ordered the fee sum.2 legisla- the benefit from Here, § both the majority has held that 172 di- legislature tive amendment. The made clear right unpaid an of his vests § nothing that 172 has to do with the Fund’s upon of his installments fee liability by amending fees I that this result is claimant. believe based mentioning without such fees. faulty analysis law. on amendments, Before the 1992 whether an Taylor, 172 was we observed attorney’s right on an install- “conspicuously silent lapsed the Fund payment,” the method of their and held that ambiguous death the claimant was under awards, applied § 30 to all 30 and 172. The 1992 amendments to employer whether awarded §§ ambiguity. 30 and 172 resolved the Id., unequivo- Fund. 804 P.2d at 432. We attorney’s right amendment to 30 vests an cally apply held that 172 does not to attor- granting to his fee when the award it be- ney fees. Although comes final. it amended legislature exempt did not the Fund from Following Taylor, Chamberlain and § 30’s mandate that installment fee awards legislature passed an amendment granting are vested when the awards them September became which effective become final. part The relevant amendment states: majority holds that the 1992 amend- Thus, changed says ments paid periodical- law. the ma- awards shall be jority, rely Faman on the amend- ly_ they ments because were not effective when shall be vested at the time the award there- majority’s holding ig- Batt died. The has [Emphasis becomes added.] final. statutory nored the rule that where a amend- majority The holds that the 1992 amend- ambiguity, ment resolves an legislative response §to 30 was a to presumed ... be that the amend- Taylor. According majority, by clearly express ment was made to more amending legislature § recognized 30 the the legislative previously the intention indefi- special protecting Fund’s status and was the nitely expressed. so, being Fund from sum awards. This says majority, the the Fund is not bound County Equalization, Pittsburg Board of legislative County the mandate that installment at- Muskogee Industrial Finance Cor torney awarding poration, fees vest when the order 357 P.2d majority opinion explain why does not them becomes final. Pittsburg County apply case should not here. majority’s holding does not bear anal- §§ pres The 1992 amendments to 30 and 172 ysis. negated The amendment to our appropriate application ent an case for the holdings Taylor requir- in Chamberlain Pittsburg County response rule. to fees in cases opinions Taylor, our in Chamberlain Nevertheless, in be a sum. 30 legislature stated its intention that applies employers to both and the Fund. cases shall fees Despite holding our legislature installments. The also fees, apply legisla- that such fee awards are directed ture amended 1992 without men- awarding them vested when the order be tioning attorney The reason is clear: clearly legislature comes final. The enacted legislature govern intends for 30 to all provision explanatory as an mea second sure, fees, pays designed change not one the law. no matter who them. appeal tomey 2. This case was consolidated with two the Fund in disability'case others. All involved the issue of the Workers' a sum. power Court’s an at- to commute legislature nothing in said its 1992 sup- amendments to either 30 or 172 to

port majority’s holding that the Fund has special right to have installment lapse the death of the claimant.

Instead, legislature expressly protected result,

all in- installment fees from such

cluding An those awarded the Fund.

attorney’s right to an installment fee vests final, granting

when the award it becomes employer

whether the Fund or an in- is

volved.

By its strained construction of these am-

biguous majority statutes the has reached a only contrary legisla-

result that expressed legislative

tive intent §§

amendments to 30 and but is unfair majority’s

as well. I cannot accede

holding worthy that Farnan is not of his hire

simply because the Fund is involved. I

would remand this matter and order the Court to enter an directing pay

order the Fund to the balance

of Farnan’s fee under the award of Decem-

ber DIXON, Petitioner, D.

Shannon OWENS,

The Honorable Daniel L. Judge

District

County, Respondent.

No. O 93-1007.

Court of Criminal of Oklahoma.

Dec.

Case Details

Case Name: Batt v. Special Indemnity Fund

Court Name: Supreme Court of Oklahoma

Date Published: Dec 21, 1993

Citation: 865 P.2d 1244

Docket Number: 78427

Court Abbreviation: Okla.